STATE v. KENDRICKS. (No. 23844.) (Supreme Court of Missouri, Division No. 2. Feb. 23, 1923.) 1. Larceny conviction. 61-Evidence held to support In a prosecution for larceny from the person, evidence held sufficient to support a conviction. 2. Criminal law 1160-Approved verdict not disturbed. In a prosecution for larceny from the person, the question of weight of evidence was for the jury, and where its verdict has met the approval of the trial court, it is conclusive, in the absence of error. 3. Larceny was decided to postpone Fuller's inspection of the shop until the following morning. Fuller and Shorty remained in defendant's room all night, and defendant went out to get excused from his Pullman run. The next morning Fuller and defendant drove to a bank in a taxicab, and Fuller there secured some money with which to make a payment on the purchase price of defendant's shop, if it suited him. Shorty stayed in the room. What occurred after Fuller and defendant returned to the room is best shown by quoting Fuller's testimony as follows: "Q. Just tell us when you got into the room what was said and done between you? A. Well, when we got back we goes up in the 70(1)-Instruction held to cover room. Well, I went in first, and Kendricks he kind of followed in behind me, so he closed the door. As soon as we gets in the door I turn to pull my overcoat off, and I got my overcoat kind of like that (illustrating), down over my shoulder, and my money was sticking up something like that (illustrating), and then Kendricks says, 'We've got to have this money,' and this little fellow, he was behind me, he says, 'Yes, hand it over.' I says to Kendricks, 'My God! fellow, don't take my money that way. I am a stranger here.' He says. 'Oh, you need not worry; you will be cared for.' He taken this money, and this little fellow say, 'You better not make any cry either.' He was in behind. law of case. In a prosecution for larceny from the person, instruction that if it were found that defendant feloniously stole from the person of the prosecuting witness money of the value of $30 or more, with intent fraudulently to convert it to his own use and deprive the owner thereof without the owner's consent, defendant should be found guilty, and if it did not so find, to acquit, and properly defining "larceny" and "feloniously," and covering presumption of innocence, and weight to be given testimony, held to cover all law of the case. Appeal from St. Louis Circuit Court; Moses Hartmann, Judge. William Kendricks was convicted of larceny, and he appeals. Affirmed. John R. McCarthy, of St. Louis, for appellant. Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State. DAVID E. BLAIR, P. J. Convicted of larceny from the person and sentenced to imprisonment in the penitentiary for two years, defendant has appealed. "Q. Who took the money? A. This fellow Kendricks taken the money. "Q. He took the money out of your pocket, did he? A. He took the money out of my pocket. "Q. What did the other fellow say? A. He said, 'You better not make any outcry.' Then, so when they did that this fellow Kendricks pulled out a note and says, 'Sign this note here.' no noise.' "Q. This man Kendricks said that? A. Yes, sir. He pulled out the note on the table. As so-as they did that I didn't know what to do. I was scared of this fellow behind me. I couldn't see behind me, and I didn't know what J. P. Fuller, the prosecuting witness, Wil- he had. I was scared to make any holler, and liam Kendricks, the defendant, and a third he says 'Come on downstairs,' and this felman, known in the record as "Shorty," were low kept threatening me, says, 'Don't you make together in defendant's room at 3516 Laclede avenue in the city of St. Louis, on the morning of January 13, 1921, when the alleged larceny occurred. Fuller testified that he came to St. Louis from Detroit about five days previously and had been looking around to purchase a pressing establishment. On the afternoon of January 12, 1921, he met defendant on Pine street, near Channing avenue, where an acquaintance was quickly made, and defendant informed Fuller that he had a pressing establishment which he would sell. The business was not paying him, he said, because he was away so much. The landlady at 3516 Laclede avenue idenAt this time Shorty joined Fuller and de- tified defendant as the man who was at her fendant, and the three went to defendant's rooming house with Fuller. The defendant room at the above address to talk the mat- was arrested within a short time after the ter over. As it was then growing late, it money was claimed to have been taken from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Q. Who went downstairs first? A. This fellow Kendricks was in front, and the other fellow behind me. They come down and walked across the street until we got to the alley, and as soon as we got to the alley this fellow Kendricks stepped back and says, 'Beat it down through the alley.' So I didn't know nothing to do but go and look for an officer, and I looked around about five minutes and couldn't find no officer, and I went to the police station and reported it. "Q. How much money did they get from you? A. They taken about $515." (248 S.W.) Fuller. Only a small amount of money (de-; says, 'As long as my money lasts luck is bound fendant said $2.50) was found on his person to come.' He says, "The only reason we didn't by the officers. The officer testified that win last night, our money wasn't long enough.' defendant at first denied knowing Fuller at So we go back to 3516 Laclede, and we gets all, and that it was only after being con- about an hour, and finally we were shooting on our knees shooting craps, and we shot there fronted with and identified by Mrs. Smith, $25 and $50 and doubling it; so Shorty won all his landlady, that he acknowledged knowing the money, and when Fuller got broke Fuller Fuller, and then stated that Fuller lost his tells Shorty, he says, 'Well, I got some more money "shooting craps." Shorty evidently money; loan me $25, and I will write you a disappeared from the scene as quickly and note I owe you and I will pay it to you.' So mysteriously as he entered it. Fuller wrote him a note, says "This is to certify that I owe you $25.'* So after he lost that $25 Shorty says, 'Well, I'm going; So we come on, let's go and have a drink.' goes on downstairs, and we went to go in this Fuller says, 'I don't want nothing to drink. soft drink place at Theresa and Laclede, and I'm broke now; I want some money.' Shorty says, 'I'm going in here and get something to drink,' and he went in, and Fuller and I went down to Channing, and that's where I left Fuller; and that afternoon I was arrested. Defendant denied taking Fuller's money, and attempted to show that Fuller lost his money in a gambling game to Shorty and at the same time defendant lost his money also. He testified that he first became acquainted with Fuller at England, Ark., where Fuller ran a little pressing shop and a "crap game," and that he shot craps at Fuller's place once or twice. After meeting Fuller on January 12th and renewing their acquaintance, they met Shorty, and he told them he had been in a crap game and had made a little money. Defendant's story from that point appears from his testimony, as follows: "Q. At the time you were arrested, how much money did you have on you? A. I had two and a half I borrowed from Johnny Wright whilst I was out to his house. me up. "Q. Did you at any time take any money out of this man's pocket? A. No, sir. "Q. Now, at the time the officer arrested you, what did you tell the officer, and what "I says, 'What did you do?" He says, 'I did he say to you? A. He come in, and he made a little money.' So we got talking about asked for Mr. Wright first. So I was there, that, and he says, 'We'll have a little crap game and he says, "That you Kendricks?' I says, now if you don't mind; we'll play a little and 'Yes, sir.' 'You been shooting them dice again?" see who is luckiest.' I say, 'All right, come I says, 'Yes, a little bit.' That's all I says to on and go on over to my room.' At first Full-him. He says, 'Well, come on.' And he locked er says, 'Where can we go? Let's go to a club.' I says, 'Let's go to my room. It is right here.' So we went to my room, 3516 Laclede, about 5:30 in the afternoon. So we started shooting dice. We had a pair of red dice. We shot dice along, seesawed along; Fuller and myself were both winner; I was about $70 or $80 winner, and Fuller was about that much winner. And along about 9 o'clock Shorty breaks me and broke Fuller; we lost our money. He beat us out of all we had. So I says; 'Well, we're broke.' Fuller says, 'Well, if you wait until tomorrow morning I'll get some money; give me chance to get even.' "Q. Who says that? A. That's what Fuller said. So Shorty says, 'If I don't go away I will.' He says, 'Well, don't go away, I'll stay up here with you, and we'll play cards and entertain you.' He says, 'All right.' He asked me where was I going. I says 'I'm going down to a friend of mine's house.' I had an engagement to a whist party, and I went out to the friend's party, and I played whist all night. We all quit playing about 2 o'clock, so I just stayed there all night with some friends of mine, and the next morning I come out to where they were, and I borrowed $15 that night so I could get in the game next morning to get even. So next morning before we started the game Fuller says 'Well, come on and go and call a machine, and we will go down so I can get some money, and we will come back and play.' So I says, 'All right,' and I went downstairs and called a machine, and the machine come and blowed, and I hollered out the window and says, 'We'll be right down,' and we come down and went in the machine and went to the bank and he went in and got some money, and he "Q. Did you at any time threaten him in any manner in taking any money from him? A. No, sir." The taxicab driver, Sam Reese, corroborated defendant in his testimony that Fuller said in the taxicab, "As long as my money lasts, luck is bound to come," although not in the identical words. The taxicab driver also testified that he found a pair of gloves in his car after Fuller and defendant left it, and took said gloves up to defendant's room and "heard them popping dice." In rebuttal Mrs. Smith testified that the taxicab driver did not go up to defendant's room. I. Errors of various sorts are charged in the motions for new trial and in arrest of judgment, but a reading of the record is sufficient to show that the charges are not well founded. In his assignment of errors in his brief, plaintiff urges error only in the giving of instructions and failure to instruct on all the law, and because the verdict is the result of bias and prejudice on the part of the jury and against the weight of the evidence. These assignments will be separately noticed. Numerous complaints are made in the motion for new trial concerning rulings of the trial court on the admission of evidence. We have carefully read the record and find such assignments in the motion for new trial utterly groundless, and, since appellant, tion. The trial court told the jury, in subhas not noticed them in his brief, we will stance, that if it found that defendant unlawnot notice them further. fully and feloniously did steal, take, and Complaint is made of improper argument carry away from the person of the prosecutby counsel for the state. This point was ing witness money of said prosecuting witalso passed in the brief without mention.ness of the value of $30 or more, with intent An objection was made and sustained to the fraudulently to convert the same to his only remark which can be deemed improper. own use and permanently to deprive the The other objections are entirely without owner thereof, without the owner's consent, merit, for the reason that counsel was it should find defendant guilty of larceny confining his argument almost to the exact from the person and assess his punishment, words of the testimony. No good reason ap- etc., and, if it did not so find the facts to pears for further discussing this point. be, to acquit the defendant. The defense of defendant was taken care of in the words "and unless you so find the facts to be, you will acquit the defendant." [1] The appellant contends that there is not sufficient evidence to support the verdict. We think the testimony on the part of the state is amply sufficient to make a case of larceny from the person. Fuller had over $500 in money in his pocket, and it was taken out of his pocket by appellant before his eyes. He was then escorted to an alley and told to "beat it down through the alley." All the essential elements of the crime were shown. Appellant does not mention this contention in his brief. It is clearly without merit. [2] 11. Appellant contends in his brief that the verdict was the result of bias and prejudice on the part of the jury. Unless the fact that the jury believed the testimony of the prosecuting witness and disbelieved that of defendant and assessed against defendant the lowest punishment provided by law be taken as proof of bias and prejudice, there is not the slightest evidence of bias or prejudice in the entire record. Of course, so to contend would be utter nonsense. The jury had the right to believe the prosecuting witness, and it evidently did SO. The same considerations rule adversely to the appellant's contention that the verdict was against the weight of the evidence. This was for the jury. Its verdict has met the approval of the trial court, and is conIclusive in the absence of error. [3] III. This brings us to the final contention of appellant-the only point he has briefed at all-that the trial court erred in giving improper instructions to the jury and failed to instruct on all the law of the case. As we understand it, the point which appellant attempts to make is that the trial court should have given an instruction telling the jury that, if the prosecuting witness participated in a game of craps and in that way lost his money, the jury should acquit defendant. Defendant asked no such instruc The remainder of the charge given by the court is equally unassailable. It properly defined "larceny" and "feloniously;" told the jury the information was a mere formal charge; that defendant was presumed to be innocent until his guilt was established by the evidence beyond a reasonable doubt, and defined reasonable doubt. The charge also properly laid down the rules to guide the jury in determining the weight and credit to be given to the testimony of the various witnesses. It concluded by telling the jury that, while the argument of counsel is for the purpose of aiding the jury in arriving at a proper verdict by reviewing the evidence and showing its application to the issues, yet the jury must be guided in its deliberations by the evidence and the instructions of the court. No just complaint can be made of any of the instructions. The cases cited by appellant are to the effect that it is error to refuse an instruction in the converse when requested by defendant, as in State v. Cantrell, 290 Mo. 232, 234 S. W. 800, or that it is error to fail to instruct on all the law of the case, for example, where the charge is grand larceny and there is some evidence to show the defendant guilty of petit larceny, and no instruction on petit larceny has been given. The cases cited in no way support the contention of appellant. The court fully instructed on all the law of the case. Defendant offered no instruction embodying the effect of the loss of the money by Fuller through a gambling transaction, nor did he request the court to give an instruction on that subject. The judgment is affirmed. (248 S. W.) STOUFFER v. CRAWFORD et al. (No. 22706.) (Supreme Court of Missouri, Division No. 1. Jan. 22, 1923. Motion to Transfer to Court in Banc Overruled March 5, 1923.) 1. Constitutional law 190-Taxation 54 -Statute carrying forward provisions of prior statutes not invalid as retrospective. The Income Tax Act of 1919, amending Laws 1917, p. 524, providing for taxing in comes for the whole year of 1919, though the act did not go into effect until August 7, 1919, in so far as it carried forward the provisions of the amended act, was not invalid as retrospective. 2. Constitutional law 190-Statute basing rate for income tax on valuation on a date prior to passage, the rates not being increased till after passage, held not invalid as retrospective. from interstate commerce, the act is not therefore invalid, but the sole effect is to prevent the taxation of such income. 6. Constitutional law 229 (3)-Taxation 54-Basing valuation for corporations on date different than date used for individuals held not an "Inequality" under the Fourteenth Amendment. The selection for purposes of the income tax of one date for the valuation of the property for individuals under Rev. St. 1919, § 13110, and the selection of another date, six months previous, under section 13112, for the valuation of property of corporations, does not of itself disclose an inequality under the Fourteenth Amendment, there being no conclusive presumption that properties of equal value would be valued differently at the different dates named. [Ed. Note. For other definitions see Words and Phrases, Inequality.] 7. Constitutional law 229 (3)-Taxation The distinction in Income Tax Act 1919, between resident and nonresident corporations, furnishes a reasonable basis for classification for purposes of taxation, and is not "an unequal application of the laws," prohibited by state and federal Constitutions. The Income Tax Act of 1919, amending Laws 1917, p. 524, providing for an increase in rates, and that January 1, 1919, should be the date used as a basis to determine the gain or loss by corporations, although such date antedated the taking effect of the statute, held not retrospective because such value was the basis of the previous existing statute and a mere increase in the rate of taxes during the last five months of the year does not affect the validity of the annual basis of valuation. 3. Statutes 49-The fact that the amount of taxes to be paid under Income Tax Act The contention that Rev. St. 1919, § 13111, was difficult to compute held not to invali-denies to persons "under guardianship and es date statute. The Income Tax Act of 1919, amending Laws 1917, p. 524, providing for a change in the rate after August 7, 1919, is not invalid because there is no way to ascertain the amount of income falling under the act of 1917, and the amount coming under the rate of the 1919 act, this objection presenting merely the difficulty to be met in computing, assessing, and collecting the tax, and not affecting the validity thereof. 4. Constitutional law 42-That the Income Tax Act was discriminatory does not give right to attack constitutionality to one not affected. Plaintiff could not enjoin the assessment and collection of taxes under the Income Tax Act of 1919, amending Laws 1917, p. 524, on the ground that the act was discriminatory, where he was in no way affected by such diseriminations, and, although the suit was brought in behalf of plaintiff "and all who will join him therein," none joined, hence the right to question the constitutionality must be founded on plaintiff's own situation. 5. Statutes 64 (8)-That certain provisions of the Income Tax Act taxed income derived from interstate commerce does not invalidate entire act, but merely prevents taxation of such income. 8. Constitutional law 48-Income Tax Act upheld, where susceptible of constitutional construction. tates held in trust" the same exemptions from 54-Penalizing nonresidents failing to file return under Income Tax Act held a reasonable method to secure filing of returns. The provisions of the Income Tax Act of 1919, amending Laws 1917, p. 524, denying family exemptions to nonresidents, who fail to file the required return, is justified because nonresidents are not in the jurisdiction, and this furnishes a proper basis for a difference in the means used to secure the filing of such return. 10. Constitutional law 229 (2)-Taxation 194-Exempting insurance companies paying gross income taxes in lieu of all other taxes from provisions of the income tax held not unconstitutional discrimination. The fact that the income derived from the investment of insurance corporations is exempt Even though certain provisions of the In- from the provisions of the Income Tax Act come Tax Act of 1919, amending Laws 1917, of 1919, amending Laws 1917, p. 524, does not p. 524, taxes income of nonresidents derived constitute an unconstitutional discrimination For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes against other corporations and individuals, in view of the fact that insurance companies are taxed separately on their gross incomes, in lieu of all other taxes, and the exemption applies solely to companies so taxed. Graves, P. J., dissenting in part. Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge. Suit for injunction by Joseph W. Stouffer against John M. Crawford and others. Demurrer to the petition was sustained, and judgment rendered for defendants, and plaintiff appeals. Affirmed. the year 1919 to defendant Crawford as such assessor, upon the forms provided by defendant Crawford for the purpose of taxation under said pretended statutes, and that defendant Crawford is proposing and planning to assess the said income for the year 1919 of plaintiff for taxation in the manner and pursuant to the provisions of a pretended statute of the state of Missouri entitled 'An act providing for the assessment, levying, collecting, and paying of income tax,' approved April 12, 1917, and appearing at pages 524 to 538, inclusive, of the Session Laws of Missouri for 1917, and in the manner and pursuant to the provisions of a pretended statute of the state of Missouri amending said foregoing statute and repealing William M. Morton, of St. Joseph, for ap- sundry sections thereof and enacting new secpellant. Jesse W. Barrett, Atty. Gen., and Merrill E. Otis, Asst. Atty. Gen., for respondents. JAMES T. BLAIR, J. This suit was brought to enjoin the assessor, county clerk, and collector of Buchanan county from proceeding to perform their respective duties under the Income Tax Act (Laws 1919, p. 718). The trial court sustained a demurrer to the petition, appellant refused to plead further, judgment was rendered accordingly, and this appeal followed. After numerous amendments, the petition finally assumed the following form: tions, approved May 6, 1919, and appearing on pages 718 to 721, inclusive, of the Session Laws of Missouri for 1919, and defendant Crawford states that, upon the completion by him of said assessment, he will certify the results thereof to his codefendant Ferril as county clerk of said county, and, unless restrained by the judgment of this court, defendant Crawford will carry out his plan aforesaid and will assess against this plaintiff a tax upon his said income under said pretended statute, and will certify the result of his said assessment to his codefendant Ferril in his capacity as county clerk of said county. "And plaintiff further alleges that defendant Crawford is preparing to assess and declares that he will assess within the time prescribed by and under and by virtue of said pretended statutes a tax against plaintiff's said income for the year 1920, and having done that he will certify the results of his said assessment against plaintiff's income for the year 1920 to his codefendant Ferril as county clerk of said county and this, plaintiff alleges said Crawford will do, unless restrained and enjoined by this court frem so doing. "And plaintiff alleges that defendant Ferril proposes and is planning to compute the taxes against plaintiff's said income for the year 1919, claiming to act in so doing under the authority and pursuant to the provisions of the aforementioned pretended statutes of the state of Missouri, upon the receipt from his codefend "For amended cause of action, plaintiff states that he is a resident of Buchanan county, in the state of Missouri, and that he is the owner of property real and personal in said county and of property situate outside of the state of Missouri, from which and from the sale of property acquired by him prior to July 1, 1917, he derived during the calendar year 1919, an income in excess of all exemptions and deductions allowed therefrom by the pretended statutes of the state of Missouri, hereinafter mentioned, and that income already received by him from said properties and from the sale of property acquired by him prior to July 1, 1917, during the calendar year 1920, with the income he will receive therefrom during the calendar year 1920 will exceed all exemptions and de-ant Crawford of the results of defendant Crawductions allowable therefrom by said pretended statutes in the assessment and collection of the income tax thereon under said pretended statutes, and that he brings this suit on behalf of himself and all others similarly situated who may join him herein; that said defendant, John M. Crawford, is the duly elected, qualified, and acting county assessor of the county of Buchanan aforesaid, under a term of office which will expire June 1, 1921; that the said defendant, Artemas Ferril, is the duly elected, qualified, and acting county clerk of the county of Buchanan aforesaid, under a term of office which will expire December 31, 1921, and that the said defendant John Porter Srite is the duly elected, qualified, and acting collector of said county of Buchanan aforesaid, under a term of office which will expire after the year 1921. "That defendant Crawford, claiming to act by virtue and under authority of his office as assessor, is demanding of this plaintiff that plaintiff make a return of his said income for ford's assessment against plaintiff's income for the year 1919 certified to him pursuant to said pretended statutes, and defendant Ferril further is proposing and planning and states that he will enter upon a tax book which has been provided for that purpose, a tax against the said income for the year 1919 of plaintiff, and that he will deliver said book to his codefendant Srite, the county collector of Buchanan county aforesaid, for the collection of said tax upon plaintiff's income for the year 1919, so assessed, levied, computed, and extended against this plaintiff. "And defendant Ferril is preparing to and declares that he will compute and extend upon a tax book under the provisions of said pretended statutes a tax against plaintiff's income for the year 1920, upon the receipt from his codefendant Crawford of the results of said Crawford's assessment of plaintiff's said income for the year 1920, and that he will deliver said tax book with a tax computed and entered therein against plaintiff's income for the |